IMPEACH! IMPEACH! IMPEACH!

" The House of Representatives ...shall have the sole Power of Impeachment."

Article I, Section 2, Clause 5

Articles of Impeachment

In the debates in the Constitutional Convention, the delegates were attempting to craft a mechanism that would allow for the disciplining of a President who abused his constitutional responsibilities without creating a weapon by which the President would be prevented from carrying them out. At bottom, it was a question of how to refine and make effective the separation of powers.

Article II, Section 4, says that the President, Vice President, and "all civil Officers of the United States"—which includes judges —can be impeached. Members of Congress can be expelled by their own respective body. (See Article I, Section 5, Clause 2.)

Early on, some delegates expressed the apprehension that those serving in the federal government would be disinclined to monitor each other. Accordingly, John Dickinson proposed "that the Executive be made removeable by the National Legislature on the request of a majority of the Legislatures of individual States." James Madison opposed the idea because it would subject the executive to the "intrigues" of the states. After defeating Dickinson's proposal, the members of the Convention also turned aside George Mason's and Gouverneur Morris's initial fears that the impeachment power might render the executive the servant of the legislature. Instead, the Framers opted for the procedure that had been followed by the English and by the constitutions of most of the states. The appropriate place of bringing charges of impeachment, which power is analogous to the bringing of criminal charges by a grand jury, is in the lower house of the legislature. Just as the grand and petit juries are popular institutions, so it made sense to have the branch closest to the people charged with this indictment-like power.

The Constitution does not specify how impeachment proceedings are to be initiated. Early in our history, a Member would rise on the floor of Congress and propose an impeachment, which would then be assigned to a committee. In recent years, Members of the House Judiciary Committee have initiated the proceeding and then made recommendations for the whole House's consideration. If the House votes an impeachment resolution, the Chairman of the Judiciary Committee recommends a slate of "managers," whom the House subsequently approves by resolution, and who then become prosecutors in the trial in the Senate.

For a time there was legislation enabling the Attorney General to appoint a "special prosecutor" with the power to recommend impeachments to Congress, but dissatisfaction with the power of such an unchecked independent counsel led to the expiration of the authorizing statute. Even the most famous "independent counsel," Judge Kenneth Starr, who recommended the impeachment of President William Jefferson Clinton to Congress, had consistently argued against the practice of appointing such independent counsels.

There have not been many instances of impeachment over the years—a few dozen in all, mostly of corrupt federal judges. The most notable impeachments—Justice Samuel Chase, Presidents Andrew Johnson and William Jefferson Clinton—have ended in acquittals by the Senate. There were proceedings and hearings at the House Judiciary Committee and a bill of impeachment reported to the House against President Richard M. Nixon. Nixon resigned before the full House could vote on the impeachment charges against him.

The near-unanimous view of constitutional commentators is that the House of Representatives' "sole power" of impeachment is a political question and therefore not reviewable by the judiciary. The House is constitutionally obligated to base a bill of impeachment on the standards set out in Article II. (See Article II, Section 4.) However, the fact that the Constitution's text grants the House the "sole power," and the fact that such a review is not clearly within the Article III power of the federal judiciary indicate that this responsibility is the House's alone. The Supreme Court has found that the Senate's "sole power" to try impeachments is not justiciable. Nixon v. United States (1993).

That leaves the question of whether the clause imposes an affirmative duty on the House to monitor the conduct of those subject to impeachment, and, when evidence of impea-chable offenses is manifest, to initiate proceedings. It has been the general American practice regarding criminal law to grant considerable discretion to prosecutors, so that by analogy one could argue that the House has complete discretion to decide whether to initiate impeachment proceedings. On the other hand, Alexander Hamilton, in The Federalist No. 77, argued that the nation would find "republican" safety from a presidential abuse of power by the mode of his election and by his "being at all times liable to impeachment." There is no doubt that the Framers saw impeachment as a part of the system of checks and balances to maintain the separation of powers and the republican form of government. The implication is that when the President (or other impeachable official) has committed an impeachable offense, the Members of the House, bound by the oaths they take to uphold the Constitution, are under a particular obligation to deal with the miscreant's offenses, irrespective of whether their bill of impeachment may or may not lead to a conviction in the Senate.

Stephen B. Presser, Sullivan & Cromwell Professor of Law , Northwestern University School of Law

"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

Article I, Section 9, Clause 8

Emoluments Clause

Article VI of the Articles of Confederation was the source of the Constitution's prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.

The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10, and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a republic was "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during good behavior."

Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.

Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the "Corruption of Blood" worked by "Attainder[s] of Treason" (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.

In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsey, the eighteenth-century historian of the American Revolution, called the "life and soul" of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the "diversity in the faculties of men," the protection of which, as Madison insisted in The Federalist No. 10, was "the first object of government." The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. "Capacity, Spirit and Zeal in the Cause," as John Adams said, would "supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind." Or as the Jeffersonian St. George Tucker put it in 1803: "A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them....Equality of rights...precludes not that distinction which superiority of virtue introduces among the citizens of a republic."

Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." The Federalist No. 22 (Alexander Hamilton). The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept "any present, Emolument, Office, or Title, of any kind whatever, from...[a] foreign State."

Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker's explanation of the clause noted that "in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory." As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.

The Emoluments Clause has apparently never been litigated, but it has been interpreted and enforced through a long series of opinions of the Attorneys General and by less-frequent opinions of the Comptrollers General. Congress has also exercised its power of "Consent" under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.

Robert J. Delahunty, Associate Professor of Law, University of St. Thomas School of Law

Comments of Interest

Donald Trump’s luxury resort in Florida is making the most of his leap into the White House by doubling its initiation fee to $200,000, it was reported Wednesday [01-25-2017].
The price hike at Mar-a-Lago in Palm Beach took effect on Jan. 1, less than two months after Trump’s defeat of Hillary Clinton, according to CNBC.
A Reuters report said the increase occurred in two phases — from $100,000 to $150,000 in June, and then to $200,000 this month.
The timing raised red flags for a government watchdog.
"It sure looks like he’s using the presidency to line his pockets," said Jordan Libowitz of the Center for Responsibility and Ethics in Washington, DC.

A senior U.S. Secret Service agent, Kerry O'Grady, posted Facebook condemnations of
President Trump during the past seven months, including one in which
she said she wouldn't want to "take a bullet" for him.
She explained herself saying she viewed his presidential candidacy as
a "disaster" for the country, and especially for women and minorities.

O'Grady, the special agent in charge of the Secret Service's
Denver district, oversees coordination with Washington-based advance
teams for all presidential candidate and presidential trips to the
area, including all upcoming or future trips by the president, vice
president or Trump administration officials.
O'Grady also added her own comment on that post: "We are moving our civil
rights into a period of bigotry, misogyny and racism that this country
has not tolerated for decades. Dark ages. I am horrified and dismayed
beyond words."